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Migration Legislation Amendment (Code of Procedure Harmonisation) Bill 2016

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2016

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

HOUSE OF REPRESENTATIVES

MIGRATION LEGISLATION AMENDMENT (cODE OF PROCEDURE HARMONISATION) BILL 2016

EXPLANATORY MEMORANDUM

(Circulated by authority of the Minister for Immigration and Border Protection,

the Hon.  Peter Dutton MP)



Migration LEGISLATION Amendment (CODE OF PROCEDURE HARMONISATION) Bill 2016

OUTLINE

The Migration Legislation Amendment (Code of Procedure Harmonisation) Bill 2016 (the Bill) makes amendments to the Migration Act 1958 (the Migration Act) to harmonise and streamline Parts 5 and 7 of the Migration Act into one consolidated part.  Currently, Parts 5 and 7 contain the codes of procedure for review of decisions by the former Migration Review Tribunal (MRT) and former Refugee Review Tribunal (RRT), respectively.

The Bill complements the schedules to the Tribunals Amalgamation Act 2015 (the Amalgamation Act) which commenced on 1 July 2015 and merged key Commonwealth merits review tribunals.  This included the abolition of the former MRT and former RRT and the consolidation of their functions into the newly established Migration and Refugee Division (MRD) of the Administrative Appeals Tribunal (the Tribunal).  The Bill consolidates Parts 5 and 7 of the Act into a single part which contains the code of procedure for review of decisions by the MRD.  The amendments do not alter the decisions for which merits review is currently available under the Migration Act.

In addition to the harmonisation of the codes of procedure, the Bill makes amendments to the codes of procedure aimed at:

  • clarifying the operation of certain provisions relating to the conduct of review such that they are interpreted as intended;
  • clarifying the notification requirements in relation to oral decisions of the MRD; and
  • addressing an anomaly in Part 7AA of the Act regarding the giving of documents by the Immigration Assessment Authority (IAA) in relation to family groups as well as providing a mechanism for the IAA to review decisions relating to family groups together.

FINANCIAL IMPACT STATEMENT

These amendments will have low financial impact. 

Statement of compatibility with human rights

A Statement of Compatibility with Human Rights has been completed in relation to the amendments in this Bill and assesses that the amendments are compatible with Australia’s human rights obligations.  A copy of the Statement of Compatibility with Human Rights is at the Attachment.



migration legislation amendment (code of procedure harmonisation) bill 2016

 

NOTES ON individual CLAUSES

 

Preliminary

 

Clause 1                      Short title

1.                   This clause provides for the Bill, when enacted, to be cited as the Migration Legislation Amendment (Code of Procedure Harmonisation) Act 2016 (the Act).

Clause 2                      Commencement

2.                   Subclause 2(1) provides for the commencement of each provision in the Bill, as set out in the table.

3.                   Item 1 of the table provides that the whole of the Act will commence on a single day to be fixed by Proclamation.  It also provides that if the provisions do not commence within the period of 6 months beginning on the day the Act receives the Royal Assent, they will commence on the day after the end of that period.

Clause 3                      Schedules

4.                   This clause is the formal enabling provision for the Schedules to the Bill, providing that legislation that is specified in a Schedule is amended or repealed in accordance with the applicable items in the Schedule, and that any other item in a Schedule has effect according to its terms.



SCHEDULE 1 - CODE OF PROCEDURE HARMONISATION

Part 1 - Main amendments

Migration Act 1958

Items 1 and 2             Subsection 5(1)

5.                   These items repeal the definitions of Part 5-reviewable decision and Part 7-reviewable decision from subsection 5(1) of the Migration Act and insert new definitions of reviewable decision , reviewable migration decision and reviewable refugee decision

6.                   These amendments are integral to this Bill in its merger and harmonisation of Parts 5 and 7 of the Migration Act.  Parts 5 and 7 contain the codes of procedure for review of decisions and were amended by the Amalgamation Act when the former MRT and former RRT were abolished and their functions consolidated into the newly established MRD of the Tribunal, on 1 July 2015. 

7.                   The harmonisation of Parts 5 and 7 will reflect that the review of decisions captured by those parts are now heard by the one Division of the Tribunal and will reduce duplication of provisions. 

8.                   For ease of reference, the definitions are contained in subsection 5(1).  However, the definitions refer to their full meanings, within provisions in Part 5 of the Migration Act.

9.                   For a summary of related measures, please see explanation for item 22.

Items 3 and 4             Paragraphs 5(9)(a) and 5(9)(b)

10.               These items omit the reference to Part 7 from paragraphs 5(9)(a) and 5(9)(b).  This is consequential to the repeal of Part 7 by item 94.

11.               Item 4 also inserts a reference to Part 7AA into paragraph 5(9)(a).  This reflects that since the insertion of Part 7AA by the Migration and Maritime Powers Amendment (Resolving the Asylum Legacy Caseload) Act 2014 it has been possible for a decision to be subject to review under Part 7AA.  There is no need to insert a reference to Part 7AA into paragraph 5(9)(b) because that paragraph is directed to circumstances in which a person may make an application for review of a reviewable decision within a prescribed period but fails to do so.  Under Part 7AA decisions are automatically referred by the Minister to the IAA for review.

Item 5                         Paragraph 5(9)(b)

12.               This item contains a technical amendment, consequential to the repeal of paragraph 5(9)(c) by the item below. 

 

Item 6               Paragraph 5(9)(c)

13.               This item omits paragraph 5(9)(c) from the meaning of finally determined .  Paragraph 5(9)(c) is no longer necessary as the insertion of a reference to Part 7AA into paragraph 5(9)(a) by item 3 will capture an excluded fast track review applicant where they have no review rights and a decision has been made in respect of their protection visa application. 

Items 7-9           Subsection 5(9A); Paragraphs 5(9A)(a) and (b); Paragraphs 5(9A)(c) and (d)

14.               These items omit “, 7” from subsection 5(9A), omit “Part 5-reviewable”, and substitute “reviewable” in paragraph 5(9A)(a) and paragraph 5(9A)(b), and repeal paragraph 5(9A)(c) and paragraph 5(9A)(d).  These amendments are consequential to the repeal of Part 7 of the Migration Act by item 94, and to the changes to defined terms as described for items 1, 2, 22, 28, 29 and 31.

Items 10-11       Paragraph 5(9B)(a); and Paragraph 5(9B)(b)

15.               These items omit “Part 5-reviewable”, and substitute “reviewable” in paragraph 5(9B)(a), and repeal paragraph 5(9B)(b).  These amendments are consequential to the changes to defined terms as described for items 1, 2, 22, 28, 29 and 31.

Items 12-16                 Paragraphs 66(2)(d), 66(2)(e), 66(2)(f), 66(3)(b), 127(2)(b) and 127(2)(c)

16.               These items omit references to Part 7, consequential to the repeal of Part 7 from the Migration Act by item 94. 

Item 17             Paragraph 178(2)(b)

17.               This item removes the reference to section 417, which is in Part 7 of the Migration Act.  This item is consequential to the repeal of Part 7 by item 94.       

Item 18              Section 275 (definition of review authority)

18.               The definition of review authority , as repealed and substituted by this item, refers to the MRD of the Tribunal.  This item removes references to review of Part 5-reviewable decisions and Part 7-reviewable decisions.  This is consequential to the repeal of Part 7 by item 94, and reflects the fact that the MRD reviews both reviewable migration decisions and reviewable refugee decisions under Part 5 of the Migration Act .  The new definition also continues to refer to the IAA.

Items 19-21       Paragraphs 276(2A)(a) and 282(4)(e); subsection 277(4)

19.               These items omit references to section 417 for the same reasons as set out in item 17, above.

Item 22             Part 5 (heading)

20.               This item repeals and substitutes a new heading for Part 5 of the Migration Act.  This amendment is complementary to the repeal of the defined term Part 5-reviewable decision by items 1, 28 and 32, and the insertion of the new defined term reviewable decision by items 2, 29 and 31, and also reflects that Part 5 now covers review of all reviewable decisions

21.               Items 1, 2, 28, 29, 31, 32 and 34 relate to the repeal of the defined term Part 5-reviewable decision and the introduction of the defined terms reviewable decision , reviewable migration decision and reviewable refugee decision .  In summary:

  • item 1 repeals in subsection 5(1) of the Migration Act the old signpost definitions of Part 5-reviewable decision and Part 7 reviewable-decision , while item 2 inserts in subsection 5(1) new signpost definitions of reviewable decision , reviewable migration decision and reviewable refugee decision ;
  • item 28 repeals a subsequent signpost definition of Part 5-reviewable decision from section 337;
  • item 29 inserts new signpost definitions into section 337 for the new defined terms reviewable decision , reviewable migration decision and reviewable refugee decision.  These new signpost definitions are particular to Part 5 of the Migration Act;
  • item 31 inserts new section 337A in Division 2 of Part 5, which contains the substantive meaning of the new defined term reviewable decision ;
  • item 32 changes the heading to section 338 of the Migration Act, the result of which in effect transitions the substantive meaning of the defined term Part 5-migration decision to the new defined term reviewable migration decision ; and
  • item 34 inserts new section 338A in Division 2 of Part 5, which contains the substantive meaning of the new defined term reviewable refugee decision .  
Items 23, 30, 36, 48, 74, 78, 79 and 90
Division 1 of Part 5 (heading); Division 2 of Part 5 (heading); Division 3 of Part 5 (heading); Division 5 of Part 5 (heading); Division 6 of Part 5 (heading); Division 7 of Part 5 (heading); Division 8 of Part 5 (heading); and Division 8A of Part 5 (heading)

22.               These items repeal and substitute the headings of the Divisions in Part 5.  The new heading of Division 1 better reflects the purpose of the Division.  The new headings of the other Divisions in Part 5 reflect that Part 5 now covers review of all reviewable decisions .  Further, the new headings of Divisions 5, 6, 7, 8 and 8A in Part 5 are renumbered to reflect the repeal of Division 4 of Part 5 by item 47.

Item 24             Section 336M

23.               This item repeals and substitutes section 336M to contain a new simplified outline of Part 5.  The new outline reflects that Part 5 now covers review of both reviewable migration decisions and reviewable refugee decisions .  This is consequential to the repeal of Part 7 by item 94.

24.               The new outline also now refers to decisions relating to the refusal or cancellation of a visa.  This is in contrast to the previous outline which referred to decisions relating to the grant or cancellation of a visa.  This reflects that a decision to refuse a visa can be reviewed, but a decision to grant a visa cannot.

Items 25, 26 and 27
Subsection 336N(1); subsection 336N(2); and section 337 (definition of decision on a review )

25.               These items are consequential to the repeal of the defined term Part 5-reviewable decision by items 1, 28 and 32 and reflect the broadened scope of Part 5, which now covers review of all reviewable decisions .

Item 28             Section 337 (definition of Part 5-reviewable decision)

26.               This item repeals a signpost definition of Part 5-reviewable decision from section 337 as outlined in the description for item 22, and is complementary to the related measures also outlined in that description. 

Item 29             Section 337

27.               This item inserts three new signpost definitions: reviewable decision , reviewable migration decision and reviewable refugee decision into section 337 as outlined in the description for item 22, and is complementary to the related measures also outlined in that description.  The definitions in current section 410 (with the exception of Part 7-reviewable decision , which has been replaced) have been relocated to section 337.  The definition of officer of the Tribunal has not been retained as it was repealed from Part 5 as part of the amendments made by Part 1 of Schedule 2 to the Bill.

Item 30             Division 2 of Part 5 (heading)

28.               See paragraph 22.

Item 31             Before section 338

29.               This item inserts new section 337A in Division 2 of Part 5, which contains the substantive meaning of the new defined term reviewable decision .  The term reviewable decision includes reviewable migration decisions and reviewable refugee decisions .  As both reviewable refugee decisions and reviewable migration decisions will be subject to review under Part 5, it is useful to have an umbrella term that applies to both types of decision.  This amendment is part of several complementary amendments that are outlined in the explanation for item 22.

Item 32             Section 338 (heading)

30.               This item changes the heading to section 338 of the Migration Act, the result of which in effect transitions the substantive meaning of the defined term Part 5-migration decision to the new defined term reviewable migration decision .  This amendment is part of several complementary amendments that are outlined in the explanation for item 22. 

Item 33             Paragraph 338(1)(b)

31.               This item is consequential to the amendments made by items 34 and 94 which respectively insert the new defined term reviewable refugee decision and repeal Part 7 of the Migration Act.

Item 34             After section 338

32.               This item inserts new section 338A in Division 2 of Part 5 which contains the substantive meaning of the new defined term reviewable refugee decision .  New section 338A reflects the current definition in section 411, which is in Part 7 and repealed by item 94.  New section 338A has a slightly different structure to current section 411, which is intended to give a better flow to the section and to reflect modern drafting practices. 

33.               The content of current subsection 411(3), which concerns the issuing of conclusive certificates, is not replicated in new section 338A.  Section 339, which is identical to subsection 411(3), instead now applies to all reviewable decisions .  New paragraph 338A(1)(a) refers to section 339 accordingly.  New section 338A does not alter the decisions for which merits review is currently available under the Migration Act.

34.               This amendment is part of several complementary amendments that are outlined in the explanation for item 22.

Item 35             Section 339 (note)

35.               This item is consequential to the repeal of the defined term Part 5-reviewable decision by items 1, 28 and 32, and also reflects that section 339 now applies to all reviewable decisions .

Item 36             Division 3 of Part 5 (heading)

36.               See paragraph 22.

Item 37             Section 347 (heading)

37.               This item gives a new heading to section 347.  This is consequential to the repeal of the defined term Part 5-reviewable decision by items 1, 28 and 32 and the insertion of the defined term reviewable migration decision by items 2, 31 and 32. 

Item 38             Paragraph 347(1)(b)

38.               This item omits “prescribed period” and substitutes “period prescribed by the regulations” to provide clarity and reflect modern drafting practices.

Item 39             After section 347

39.               This item inserts new section 347A which sets out the process for making an application for review of a reviewable refugee decision .  This is consequential to the repeal of Part 7 by item 94. 

40.               New section 347A reflects current section 412, which is in Part 7.  New section 347A uses the new term reviewable refugee decision rather than Part 7-reviewable decision , consequential to items 2, 34 and 94 respectively.  New section 347A also uses the wording “period prescribed by the regulations” rather than “period prescribed” to provide clarity and reflect modern drafting practices.

Item 40             Section 348 (heading)

41.               This item is consequential to items 1, 2, 28, 29, and 31, which repeal the defined term Part 5-reviewable decision and insert the new defined term reviewable decision .  It also reflects that Part 5 now covers review of all reviewable decisions .

Item 41             Subsection 348(1)

42.               This item amends subsection 348(1) to refer to a reviewable decision rather than to a Part 5-reviewable decision , consequential to items 1, 28 and 32 which repeal the defined term Part 5-reviewable decision , and items 2, 29 and 31, which insert the new defined term reviewable decision .  This reflects that Part 5 now covers all reviewable decisions .

43.               This item also inserts a reference to new section 347A into subsection 348(1), consequential to item 39.  Subsection 348(1) currently requires the Tribunal to review a Part 5-reviewable decision where an application has been properly made under section 347.  Because Part 5 now covers the making of applications under section 347 in relation to a reviewable migration decision and under new section 347A in relation to a reviewable refugee decision , it is necessary to amend subsection 348(1) to include a reference to both of those sections.

Items 42 and 43         Section 349 (heading) and subsection 349(1)

44.               These items ensure that in relation to Part 5 of the Migration Act, the Tribunal now has powers in respect of both reviewable migration decisions and reviewable refugee decisions .  These items are consequential to the changes cited for item 22, above.   

Item 44             After section 350

45.               This item inserts new section 350A which concerns how the Tribunal is to consider information when a non-citizen has made multiple applications for review of a reviewable refugee decision .  This is consequential to the repeal of Part 7 by item 94 and to the insertion of the new defined term reviewable refugee decision by items 2 and 34.  Aside from use of the new term reviewable refugee decision , new section 350A mirrors current section 416, which is in Part 7. 

Item 45             Paragraph 351(5)(b)

46.               Section 351 broadly provides that the Minister may, in the public interest, substitute another decision for a decision of the Tribunal under section 349 and sets out what must be included in an accompanying statement laid before each House of Parliament.  As section 349 will apply to all reviewable decisions , section 351 should therefore also apply to all reviewable decisions .

47.               The insertion of new paragraph 351(5)(b) is consequential to the repeal of section 417 by item 94.  New paragraph 351(5)(b) mirrors current paragraph 417(5)(b) which in relation to Part 7-reviewable decisions ensures that a statement must not contain any information that may identify the applicant.  It is necessary to retain this requirement for reviewable refugee decisions to ensure the protection of the identity of an applicant who has made claims for protection.  The name of an applicant in relation to a reviewable refugee decision will continue to be protected as current paragraph 351(5)(a) prevents the name of an applicant being included in a statement and will capture all reviewable decisions as a consequence of the repeal of Part 7 and paragraph 417(5)(a). 

48.               New paragraph 351(5)(c) ensures that a statement is not to contain the name of another person connected with the matter if the Minister thinks that this would not be in the public interest.  This requirement applies to both reviewable migration decisions and reviewable refugee decisions .  Current paragraph 417(5)(c) contains a comparable requirement in relation to Part 7-reviewable decisions , and it is necessary to retain the requirement because revealing the name of another person connected with a reviewable refugee decision may reveal the identity of the applicant making  protection claims, as well as potentially placing the other person at risk. 

49.               New paragraph 351(5)(c) also ensures that, in relation to reviewable refugee decisions , a statement must not contain any information that may identify another person connected with the matter if the Minister thinks that this would not be in the public interest.  Current paragraph 417(5)(c) contains a comparable requirement in relation to Part 7-reviewable decisions , and it is necessary to retain the requirement in relation to reviewable refugee decisions because of the reasons outlined at paragraph 48 above.  

Item 46             Section 352 (heading)

50.               This item repeals and substitutes the heading of section 352.  This is consequential to the repeal of the defined term Part 5-reviewable decision by items 1, 28 and 32 and reflects that Part 5 now covers review of all reviewable decisions .

Item 47             Division 4 of Part 5

51.               This item repeals Division 4 of Part 5, a short Division comprising two sections which set out some of the Tribunal’s powers in reviewing a Part 5-reviewable decision .  These sections have mostly been incorporated into other Divisions:

  • Current paragraph 353(a) has been replaced by new section 357B, inserted by item 52.  New section 357B applies to all reviewable decisions and reflects the now increased scope of Part 5.
  • Current paragraph 353(b) has not been recreated.  Paragraph 2A(b) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) provides that in carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.  Given that paragraph 2A(b) of the AAT Act will apply to review of all reviewable decisions , it would be redundant to preserve current paragraph 353(b) in the Migration Act.  P aragraph 420(b) has not been recreated for the same reason. 
  • Current section 353B has been replaced by new section 367A, inserted by item 73.  New section 367A replicates all of the content of current section 353B, and also contains a new subsection 367A(4) which defines guidance decision .
Item 48             Division 5 of Part 5 (heading)

52.               See paragraph 22.

Item 49             Before section 357A

53.               This item, along with items 52, 54, 55, and 62 introduces subdivisions into Division 4.  These new subdivisions are intended to improve the clarity and readability of what is a complex Division.  Similarly, item 73 introduces a new subdivision at the end of Division 5 of Part 5.

Item 50             Subsection 357A(2)

54.               This amendment is consequential to the amendment made by item 90 which renumbers Division 8A as Division 8.

Item 51             Subsection 357A(3)

55.               Current subsection 357A(3) requires that the Tribunal, in applying Division 5 of Part 5 of the Migration Act, “must act in a way that is fair and just”. 

56.               In reviewing reviewable decisions , the MRD is bound by section 2A of the AAT Act.  Paragraph 2A(b) of the AAT Act requires that in carrying out its functions the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.  Given the application of paragraph 2A(b) of the AAT Act, it would be redundant to preserve subsection 357A(3) of the Migration Act.

57.               Section 357A will reflect the substance of current section 422B (which is repealed with Part 7), subject to the repeal of 357A(3).

Item 52             After section 357A

58.               This item inserts new section 357B which replicates current paragraphs 353(a) and 420(a).  New section 357B applies to all reviewable decisions .  The insertion of this provision after section 357A is intended to improve the flow of Part 5.

59.               See also item 49.

Item 53             After section 358

60.               This item inserts a new section 358A which substantially recreates current section 423A and applies to reviewable refugee decisions .  As section 423A is in Part 7, it is repealed by item 94. 

61.               Where the text of new section 358A departs from the text of current section 423A, it is only intended to aid clarity and does not change how the provision is interpreted.  In particular, the references to an application for a protection visa in new subsection 358A(1) have been inserted to clearly distinguish between that application and the application for review.

Items 54 and 55         Before section 359; and before section 359AA

62.               See item 49.

Item 56             After paragraph 359A(4)(a)

63.               This item inserts new paragraph 359A(4)(aa) into subsection 359A(4).  This paragraph clarifies that the Tribunal is not required to give to the applicant information that was included or referred to in the written statement of the decision that is under review, even if the information is information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review.  This is because the applicant should already be aware of such information and it would hinder the efficient conduct of the review if the Tribunal is required to give to the applicant, and invite comment on, information that the applicant should already be aware of.

64.               Section 359A will reflect the substance of current section 424A (which is repealed with Part 7), subject to the inclusion of paragraph 359A(4)(aa) above and the amendments in Part 1 of Schedule 2 to the Bill that will remove the word ‘respond’ from section 359A.

Item 57              Subsection 360A(1)

65.               This item repeals and substitutes subsection 360A(1).  New subsection 360A(1) includes everything that is contained in current subsection 360A(1) but now also incorporates the following:

  • the requirement that the Tribunal notify the applicant that he or she is invited to appear before the Tribunal to give evidence and present arguments, currently contained in section 361(1);
  • the requirement that the Tribunal notify the applicant of the effect of subsection 361(1) where applicable.  Currently, subsection 361(1) contains a requirement to notify the applicant of the effect of subsections 361(2) and (2A).  Item 59 repeals section 361, and substitutes a new section 361 where the effect of current subsection 361(2) and (2A) is incorporated into new subsection 361(1).  There is a slight difference between current subsections 361(2) and 361(2A) - please see item 59 below; and
  • the requirement that the Tribunal notify the applicant of the effect of section 362B, currently contained in section 360A(5) which is repealed by item 58.

66.               This reorganisation of the requirements that relate to a notice of invitation to appear is intended to provide greater clarity and readability. 

Item 58              Subsection 360A(5)

67.               Subsection 360A(5) is repealed as the requirement it imposes is now imposed by subsection 360A(1), as repealed and substituted by item 57.

Item 59             Section 361

68.               This item repeals and substitutes section 361.  New section 361 is similar to current section 361, with the following changes:

  • The content of current subsection 361(1) has been moved into new 360A(1) as inserted by item 57. 
  • Current subsections 361(2) and 361(2A) both set out the kinds of material that an applicant may request that the Tribunal obtain.  These subsections have been merged as new subsection 361(1).
  • The 7 day requirement under current subsection 361(2) and 361(2A) has not been retained in new subsection 361(1).  Instead, new subsection 361(2) has been inserted to ensure that prior to the applicant’s appearance before the Tribunal, the Tribunal is aware of the existence of any evidence or material that the applicant wants the Tribunal to obtain, and can therefore administer the review efficiently.  The intention is to place the onus on the applicant to give the notice to the Tribunal in a timely manner but without prescribing a specific timeframe within which the applicant must give the notice.
  • New subsection 361(3) retains the substance of current subsection 361(3) but removes the current reference to subsections 361(2) and (2A) and now clarifies that subsection 361(3) operates subject to subsection 361(2). 
  • New subsection 361(4) retains the substance of current subsection 361(4) which provides that section 361 does not apply to the review of a decision covered by subsection 338(4), but the new subsection specifically refers to reviewable migration decisions .  This has been inserted for the sake of clarity, as decisions covered by subsection 338(4) are reviewable migration decisions and cannot be reviewable refugee decisions .

69.               New section 361 will apply to reviewable refugee decisions as well as reviewable migration decisions to reflect the fact that similar requirements exist under the current section 426 (which is repealed with Part 7) in relation to Part 7-reviewable decisions .  Section 426 does not, however, contain an equivalent to current subsection 361(2A) (replicated in new paragraphs 361(1)(b) and (c)), which allows the applicant to request the Tribunal to obtain written evidence from a person or persons named in the applicant’s written notice, or other written material relating to the issues arising in relation to the decision under review.  As part of the harmonisation process, it is intended that the Migration Act provide that applicants for review of reviewable refugee decisions should be able to make these requests.  This will not increase the burden on the Tribunal because although under new subsection 361(3) the Tribunal must have regard to such a notice, the Tribunal is not required to comply with it.  The amendment to subsection 361(2) will also be different to previous subsection 426(2) which also had a 7 day requirement for the applicant to give notice to the Tribunal.

Item 60             Section 362 (heading)

70.               This item inserts a new heading to section 362, intended to be consistent with the heading to new section 361 to improve the readability of the Division, but is not intended to otherwise affect the interpretation of section 362.

Item 61              Section 362A

71.               This item repeals section 362A in Division 5 of Part 5.  Current section 362A entitles an applicant for review of a Part 5-reviewable decision to access written material before the Tribunal for the purposes of the review. 

72.               The Tribunal is already obligated under section 359A to provide information to the applicant that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review and ensure, as far as is reasonably practical, that the applicant understands why it is relevant to the review and the consequences of it being relied on. 

73.               The Tribunal may also under section 359AA, orally give an applicant appearing before the Tribunal clear particulars of any information the Tribunal considers would be the reason, or a part of the reason, for affirming the decisions that is under review.

74.               These two provisions clearly provide the obligation on the Tribunal in regard to providing information to the applicant where the Tribunal consider the information would be the reason, or a part of the reason, for affirming the decision that is under review and give the applicant an opportunity to comment on that information.

Section 362A does not specifically provide for the giving of information that would be the reason, or part of the reason, for affirming the decisions that is under review.  However, sections 359A and 359AA do provide for the giving of certain information to the applicant that would be the reason, or part of the reason, for affirming the decision that is under review.
Item 62             Before section 363

75.               See item 49.

Item 63             Paragraph 363(1)(c)

76.               This item is consequential to item 85, which adds new subsection 376(4), and to the repeal of Part 7 by item 94. 

77.               New subsection 376(4) provides that if the Tribunal discloses any matter contained in a document or information under subsection 376(3), the Tribunal must give a direction under section 378 in relation to the document or information. 

78.               Current paragraph 363(1)(c) provides that, subject to section 378, the Tribunal may give information to the applicant and to the Secretary.  Because item 85 amends section 376 to include a new requirement that the Tribunal give a direction under section 378, it is necessary to amend paragraph 363(1)(c) to specify that the Tribunal’s power to give information to the applicant and to the Secretary is subject to section 376 as well as to section 378.

79.               For clarity and consistency, paragraph 363(1)(c) is also amended to include a reference to section 375A as the disclosure of information to the applicant by the Tribunal under paragraph 363(1)(c) is subject to the requirements of section 375A.  The specification of paragraph 363(1)(c) being subject to section 375A provides clarity on the operation of the code of procedure for review but does not change how a review is currently conducted under Part 5.

Item 64             Subsection 363(2)

80.               This item is consequential to the repeal of the defined term Part 5-reviewable decision by items 1, 28 and 32, and also reflects that subsection 363(2) now applies to all reviewable decisions .  Section 427 is largely recreated in section 363.  Section 363 replaces section 427 which currently applies to Part 7-reviewable decisions and is repealed as part of Part 7 by item 94.

81.               Apart from its application to all reviewable decisions , new subsection 363(2) is identical to current subsection 363(2). 

82.               While new subsection 363(2) provides that the Tribunal may combine the reviews of two or more decisions made in respect of the same person, subsection 427(2) requires that the Tribunal must combine the reviews of two or more decisions made in respect of the same person.

83.               The amendment made by this item means that the Tribunal has the same flexibility as it does for migration review decisions to either combine or review separately reviewable refugee decisions in respect of the same person.  Where appropriate, the Tribunal will continue to combine reviews of multiple reviewable refugee decisions in respect of the same person.

Item 65             Section 363A

84.               This item repeals subsection 363A.  Current section 363A clarified the effect of Part 5 provisions that provide where a person is not entitled to do something or not to be assisted or not represented by another person and that the Tribunal does not have the power to permit those things.  The powers of the Tribunal for a reviewable decision are provided for in Part 5 and this provision is no longer seen as necessary.

Item 66             Section 365

85.               This item repeals section 365 and substitutes new sections 365 and 365A.

86.               New section 365 is identical in effect to current section 365.  The new section continues to apply only to reviewable migration decisions as it is appropriate that reviewable migration decisions be considered in public.  Section 365 has been rewritten so that it meets modern drafting standards, but the effect of the section has not otherwise been changed.

87.               Section 365A replicates the requirement in current section 429, which is within Part 7 and repealed by item 94.  New section 365A ensures that the review of reviewable refugee decisions continues to be conducted in private to protect the identity of the applicant who has made claims for protection.   

Item 67             Subsection 366(1)

88.               This is a technical amendment, consequential to the repeal of subsection 366(2) by item 68. 

Item 68             Subsection 366(2)

89.               This item repeals subsection 366(2) as this subsection is redundant because its effect is being preserved by new section 365.  New section 365 provides when review of a decision must be conducted publically.  If a person provides oral evidence in a way described by current subsection 366(1) in the context of review of a reviewable migration decision, the means of the provision of evidence does not remove the obligation in section 365 that the oral evidence is to be taken in public.  Current subsection 366(2) only reiterates the public nature of a review under section 365 without adding anything of substantial difference.

Items 69 and 70         Subsections 366A(1) and 366A(2)

90.               Items 69 and 70 remove the defined term assistant and replace it with “person assisting”.  Currently, the term assistant is provided in subsection 366A(1) and used twice in subsection 366A(2) and once in subsection 362A(1) which is repealed by item 61. 

91.               The defined term assistant does not add any clarity beyond simply referring to a person assisting.  This item is a technical amendment to improve the clarity of section 366A, and does not have any effect on the interpretation of the section.

Item 71             Section 366C

92.               This item repeals and substitutes section 366C. 

93.               New section 366C replicates those requirements in subsection 427(7) so that for a review of either a reviewable migration decision or a reviewable refugee decision , a person appearing before the Tribunal to give evidence who is not proficient in English will be subject to the same beneficial provision that enables the Tribunal to direct that communication with the person is to proceed through an interpreter.

94.               Current section 366C provides for when an interpreter may be provided for a Part 5-reviewable decision and current subsection 427(7) provides for when an interpreter may be provided for a Part 7-reviewable decision.  There are differences between the two current provisions however the intention of both provisions is to enable the Tribunal to provide for an interpreter for a person giving evidence who is not proficient in English.  However current subsection 427(7) is more concise than current section 366C and is clear that the qualifier for the Tribunal to appoint an interpreter is that the person is not proficient in English.

95.               The Tribunal’s consideration and decision to appoint an interpreter under new section 366C will also take into account the Tribunal’s existing responsibility under section 2A of the AAT Act to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

Item 72             Section 367 (heading)

96.               This amendment repeals and substitutes the heading of section 367 to reflect that the section applies to reviewable migration decisions .  This amendment clarifies the operation of the section, and does not make any substantive changes.

Item 73             At the end of Division 5 of Part 5

97.               This item inserts new Subdivision F and section 367A, which largely replicates current sections 353B and 420B relating to guidance decisions, as those sections are being repealed by items 47 and 94 respectively.  New section 367A captures both reviewable migration decisions and reviewable refugee decisions , as current sections 353B and 420B deal with Part 5-reviewable decisions and Part 7-reviewable decisions separately.  New section 367A has been inserted at the end of Division 5 of Part 5 to improve the flow of Part 5.

98.               The transitional provision at item 121 ensures that decisions directed to be guidance decisions under the current law will continue to be guidance decisions following commencement of this item.

Item 74             Division 6 of Part 5 (heading)

99.               See paragraph 22.

Item 75              Subsections 368D(4) and (5)

100.           This item repeals subsections 368D(4) and (5).  These provisions currently allow an applicant or the Minister (respectively) to request the Tribunal to provide a written statement if the Tribunal gives a decision on the review orally and makes an oral statement of this decision under paragraph 368D(2)(a), and sets out the Tribunal’s obligations if such a request is made. 

101.           This amendment is consequential to the insertion of new section 368E by item 77.  New section 368E maintains the ability of the Minister or applicant to request, in writing, that the Tribunal provide an oral statement of a decision in writing, and sets out the Tribunal’s subsequent obligations.  There are slight differences between the current provisions and new section 368E: see item 77 below.

Item 76              Paragraph 368D(7)(b)

102.           This is a technical amendment, consequential to the repeal of subsections 368D(4) and (5) by item 75. 

Item 77              At the end of Division 6 of Part 5

103.           This item inserts new sections 368E and 369 after section 368D.  New section 368E concerns the requirements of the Tribunal to notify the Secretary of the Department of Immigration and Border Protection and to provide written statements, when the Tribunal gives a decision on a review orally and makes an oral statement.

Oral Statements

104.           New subsection 368E(1) provides that subsections 368E(2), (3) and (4) apply if the Tribunal makes an oral statement under paragraph 368D(2)(a) about a decision on a review. 

105.           New subsection 368E(2) provides when and how the Tribunal must notify the Secretary after giving a decision on a review orally and an oral statement has been made.  Currently there is no requirement in the Migration Act for the Tribunal to notify the Secretary that a decision has been made when the decision is given orally. 

106.           The Tribunal is currently required under subsection 368D(6) to return to the Secretary any documents that the Secretary has provided in relation to the review and to give the Secretary a copy of any other documents containing evidence or material on which findings of facts were based after a written or oral statement in relation to an oral decision is made under subsection 368D(2).  However, that subsection does not require the Tribunal to notify the Secretary when an oral decision has been made or to give to the Secretary any indication of what the oral decision was, or on what points that decision was made.  This is in contrast to when the decision is made by way of a written statement prepared under subsection 368(1), where subsection 368A(2) requires the Tribunal to provide a copy of the statement to the Secretary within 14 days after the day on which the decision is taken to be made. 

107.           The requirement in new subsection 368E(2) for the Tribunal to notify the Secretary of oral decisions ensures that the Department is aware when the Tribunal has made a decision on review orally and given an oral statement in relation to that decision.  Currently, notification of oral decisions is dealt with administratively between the Tribunal and the Department.  The new subsection 368E(2) simply puts the Tribunal’s notification obligation to the Secretary beyond doubt.

108.           New subsections 368E(3) and 368E(4) provide mechanisms that allow an applicant or the Minister to request that the Tribunal provide a written version of the oral statement.  These provisions are similar to current subsections 368D(4) and (5), which are repealed by item 75.  The methods by which the Tribunal should give the written statement to the Minister and the applicant in current subsections 368D(4) and (5) are now set out in new subsection 368E(7).

Written Statements

109.           New subsection 368E(5) provides that subsection 368E(6) applies if the Tribunal makes a written statement under paragraph 368D(2)(b) about a decision on a review given orally. 

110.           New subsection 368E(6) requires the Tribunal to give to both the Secretary and the applicant a copy of the written statement made under 368D(2)(b) within 14 days after the day on which the decision is taken to have been made.  This new requirement in relation to decisions given orally is identical to the requirement in current paragraphs 368A(1)(a) and 368A(2)(a), which relate to written statements given under subsection 368(1) of decisions not given orally.

111.           Currently there is no requirement that the Tribunal provide either the applicant or the Secretary with a written statement made under paragraph 368D(2)(b) in association with an oral decision, even on request.  Inserting these notification requirements ensures that the Department and the applicant are both made aware of the reasons for the decision and is consistent with the requirements under section 368A. 

Methods of giving statements

112.           New subsection 368E(7) provides that a notice or copy given under new subsection 368E(2), (4) or (6) must be given by one of the methods specified in section 379B if given to the Secretary, or by one of the methods specified in section 379A if given to the applicant.  These requirements are identical to those in paragraphs 368A(1)(b) and 368(2)(b), which relate to written statements under subsection 368(1) of decisions not given orally.  This item ensures that the methods of giving notice of or statements in relation to oral decisions and non-oral decisions are consistent.

Validity etc. not affected by failure to comply with this section

113.           New subsection 368E(8) is entitled ‘Validity etc.  not affected by failure to comply with this section’.  It provides that a failure to comply with section 368E in relation to a decision on a review does not affect the validity of the decision.  This wording is standard to provisions currently throughout Part 5 and 7 that set out notification requirements and is consistent with new subsection 368D(7).  Inserting new subsection 368E(8) ensures that the validity of the Tribunal’s decision is not vitiated by an issue with the notification requirements.

New section 369

114.           This item inserts new section 369 at the end of Division 6.  New section 369 reflects current section 431 and applies to reviewable refugee decisions .  Section 431 is contained in Part 7 of the Migration Act and so is repealed by item 94. 

115.           Current section 431 provides that the Tribunal must not publish a statement made under subsection 430(1) which may identify an applicant or any relative or other dependant of the applicant.  A statement made under current subsection 430(1) is a written statement of a decision on a review, and relates to Part 7-reviewable decisions .

116.           New section 369 covers written statements made under subsection 362C(2), 368(1) and 368D(2) and new subsection 368E(4) in relation to reviewable refugee decisions .  

117.           The making of a written statement under subsections 362C(2) and 368D(2) (in relation to various types of Tribunal decisions including a decision to dismiss an application where the applicant fails to appear at a hearing) and the equivalent Part 7 powers under subsections 426B(2) and 430D(2) were inserted by the Migration Amendment (Protection and Other Measures) Act 2015 (POM Act). 

118.           Section 431 was not amended and continues to only cover written statements made under subsection 430(1).  To protect the applicant or their family a statement must not be published that could identify the applicant, or any relative or other dependant of an applicant, and it is appropriate and consistent that new section 369 applies to all written statements made on reviewable refugee decisions

Item 78             Division 7 of Part 5 (heading)

119.           See paragraph 22.

Item 79             Division 8 of Part 5 (heading)

120.           See paragraph 22.

Items 80-83                 Section 375, subsections 357A(2), 376(2) and 376(3)

121.           These items make small technical amendments to section 375 and subsections 357A(2), 376(2) and 376(3).  These amendments do not have any substantive effect on the interpretation of the provisions; they are simply intended to modernise the language of the provisions, in line with current drafting practices.

Item 84             Paragraph 376(3)(b)

122.           This item repeals and substitutes paragraph 376(3)(b) to reflect that the paragraph  now applies to all reviewable decisions .  Paragraph 376(3)(b) currently applies only to Part 5-reviewable decisions .

123.           New paragraph 376(3)(b) allows the Tribunal in relation to reviewable migration decisions to disclose, to the applicant or any other person who has given oral or written evidence to the Tribunal, any matter contained in a document or information given to the Tribunal.  In relation to reviewable refugee decisions , it allows the Tribunal to disclose only to the applicant any matter contained in a document or information given to the Tribunal.

124.           In relation to reviewable refugee decisions , new paragraph 376(3)(b) incorporates the content of current paragraph 438(3)(b), which is in Part 7 and repealed by item 94.  This provision ensures that, where the Tribunal has exercised its discretion to disclose certain information for the purpose of reviewing a reviewable refugee decision (notwithstanding the certification from the Minister that disclosure may be contrary to public interest), the information is only disclosed to the applicant whose interests would be directly affected, but not to other third parties.  This ensures that the identity of the applicant is protected.

Item 85             At the end of section 376

125.           This item inserts new subsection 376(4) which requires the Tribunal to give a direction under section 378 if the Tribunal makes a disclosure under new subsection 376(3).  Section 378 broadly provides that the Tribunal may restrict the publication or disclosure of certain matters.

126.           New subsection 376(4) reflects current subsection 438(4), which is contained in Part 7 and is repealed by item 94.  Current subsection 438(4) only applies to Part 7-reviewable decisions .  New subsection 376(4) applies to both reviewable migration decisions and reviewable refugee decisions .  This is appropriate because subsection 376(1) broadly provides that section 376 applies where the Minister has certified that disclosure would be contrary to the public interest or where the information or document was given to the Minister or an officer of the Department in confidence.  It is important to require that a direction be made under section 378 where information or a document is disclosed under subsection 376(4) so that the public interest is maintained and confidential information is appropriately prevented from further disclosure by the Tribunal under a section 378 direction. 

Item 86             Section 378 (heading)

127.           This item repeals and substitutes the heading of section 378.  The new heading is 378 Tribunal may restrict publication or disclosure of certain matters .  This is consequential to items 87 and 88 which amend section 378 so that it covers all types of disclosures.

Item 87             Subsection 378(1)

128.           This item repeals and substitutes subsection 378(1).  New subsection 378(1) covers both publication and disclosure of information, while current subsection 378(1) only covers publication.  The current and new subsections are otherwise identical. 

129.           Current subsection 440(1) contains a similar provision to new subsection 378(1) in relation to Part 7-reviewable decisions .  Current subsection 440(1) is in Part 7 and repealed by item 94 and already covers disclosure.  New subsection 378(1) applies to both reviewable migration decisions and reviewable refugee decisions .  It is appropriate and consistent that this provision extend to reviewable migration decisions as otherwise a person could disclose information where the Minister has certified that disclosure would be contrary to the public interest, or where the information that was provided in confidence.  

Item 88             Subsection 378(2)

130.           This item is consequential to the amendment made by item 87.

Item 89              Paragraph 378(2)(a)

131.           This item amends paragraph 378(2)(a) so that it refers to obligations under section 362C, 368, 368D or 368E.  Current paragraph 378(2)(a) only refers to obligations under section 368.  Each of the sections mentioned in new paragraph 378(2)(a) require the Tribunal to make a written or oral statement. 

132.           This amendment is consequential to the addition of the extra obligation in sections 362C and 368D by the POM Act, and the insertion of section 368E by item 77 of this Bill.

Item 90             Division 8A of Part 5 (heading)

133.           See paragraph 22.

Items 91 and 92
Section 379F and paragraphs 379G(1)(a) and (1A)(a)

134.           These items  are consequential to the repeal of the defined term Part 5-reviewable decision by items 1, 28 and 32 and reflect that sections 379F and 379G will now apply to all reviewable decisions .

Item 93             Paragraph 379G(1A)(a)

135.           This item is consequential to the insertion of new section 347A by item 39.  Because Part 5 now covers the making of applications under section 347 in relation to reviewable migration decisions and under new section 347A in relation to reviewable refugee decisions , it is necessary to amend paragraph 348(1A)(a) to include a reference to both of those sections.

Item 94             Part 7

136.           This amendment repeals Part 7 of the Migration Act.  Decisions formerly made under Part 7 of the Migration Act will now be reviewable refugee decisions determined under Part 5 of the Migration Act.  The application and transitional provisions contained in Part 4 of Schedule 1 to this Bill, particularly at items 117 and 126, ensure that this includes applications on hand for which review has not yet been completed, or for which review has not yet commenced.

137.           The amendment by this item forms a major component of the harmonisation of Parts 5 and 7 by this Bill.  While Part 7 is repealed by this item, this Bill ensures that refugee decisions will now be determined under Part 5 of the Migration Act.  That is, most of the current provisions under Part 7 have equivalent new provisions that will now apply to reviewable refugee decisions under Part 5.  

Item 95             Subsection 474(4) (table item 23)

138.           This amendment is consequential to item 78, which renames and renumbers current Division 7 of Part 5 to “Division 6 - Offences.”  This item amends the relevant table item to reflect that change.

Item 96 and 97           Subsection 474(4) (table item 28) and paragraph 474(7)(a)

139.           These amendments are consequential to the repeal of Part 7 by item 94. 

Item 98 and 99           Paragraphs 474A(a) and 474A(b)

140.           These amendments are consequential to the repeal of the definition of Part 5-reviewable decisions by items 1, 28 and 32, the repeal of Part 7 by item 94 and the insertion of the definition reviewable decision by items 2, 29 and 31. 

Item 100            Paragraph 476(2)(b)

141.           This item omits the term “Administrative Appeals”.  This does not change the effect of paragraph 476(2)(b) or subsection 500(1) since “Tribunal” is defined in the Migration Act to mean the Administrative Appeals Tribunal in subsection 5(1).

Item 101            At the end of subsection 476(2)

142.           This item adds new paragraph 476(2)(e) at the end of subsection 476(2), to provide that a decision of the Tribunal to dismiss an application under paragraph 362B(1A)(b) of the Migration Act will not be reviewable by the Federal Circuit Court. 

143.           It is not appropriate for the jurisdiction of the Federal Circuit Court to extend to these decisions.  Currently, whenever an application is dismissed under paragraph 362B(1A)(b), there are three possible outcomes:

  • Within 14 days of receiving the notice of the decision under section 362C, the applicant applies for reinstatement of the application under subsection 362B(1B).  The Tribunal decides to reinstate the application under paragraph 362B(1C)(a).  Under paragraph 362B(1D)(a), the application is taken to have never been dismissed and the review will proceed to a decision normally. 
  • Within 14 days of receiving the notice of the decision under section 362C, the applicant applies for reinstatement of the application under subsection 362B(1B).  The Tribunal decides to confirm the decision to dismiss the application under paragraph 362B(1C)(b). 
  • The applicant does not within 14 days of receiving the notice of the decision under section 362C apply for reinstatement of the application under subsection 362B(1B).  The Tribunal must then, under subsection 362B(1E) confirm the decision to dismiss the application. 

144.           In each case a decision under paragraph 362B(1A)(b) does not finalise the Tribunal’s decision on the review, and an applicant can within 14 days apply for reinstatement, and, if the Tribunal does reinstate the application, the fact that it was dismissed does not prejudice the outcome of the review.  It would be an inappropriate use of the Federal Circuit Court’s time and resources to determine whether the dismissal decision had been correctly made under paragraph 362(1A)(b), prior to one of the three possible outcomes above and the applicant having no further recourse to the Tribunal. 

145.           Despite this, an applicant may still seek review of the decision to dismiss under paragraph 362(1A)(b) in the High Court in its original jurisdiction. 

Item 102           Subsection 476(4) (paragraph (a) of the definition of primary decision )

146.           This item is consequential to the repeal of Part 7 by item 94.

Item 103           Subsection 477(3) (paragraph (b) of the definition of date of the migration decision )

147.           This item is consequential to the amendment made by item 101, which removes from the jurisdiction of the Federal Circuit Court a decision to dismiss an application under paragraph 362B(1A)(b). 

148.           Subsection 477(3) provides the definition of date of the migration decision which is relevant to when time limits on making applications to the Federal Circuit Court are engaged.  Subsection 362C(3) provides when a non-appearance decision is taken to be made.  Paragraph 362C(1)(a) provides that a decision to dismiss an application under paragraph 362B(1A)(b) is a non-appearance decision, as is a decision to reinstate an application under paragraph 362B(1C)(a) and to give directions under that paragraph.  Because a non-appearance decision is not reviewable by the Federal Circuit Court following the amendment made by item 101, it is no longer relevant to the jurisdiction of the Federal Circuit Court when a non-appearance decision is made.

104 to 106
Paragraph 477(3) (paragraph (c) of the definition of date of the migration decision ); paragraphs 478(a) and 479(a); and subsection 486D(5) (paragraph (a) of the definition of tribunal decision )

149.           These items are consequential to the repeal of Part 7 by item 94. 

Item 107           Subsection 500(1)

150.           This item omits the words “to the Administrative Appeals Tribunal” and substitutes “to the Tribunal”.  This does not change the effect of subsection 500(1), as “Tribunal” is defined in subsection 5(1) of the Migration Act to mean the Administrative Appeals Tribunal.  See item 100.

Items 108 - 112
Subsections 500(3), (4) and (4A); subsection 501A(7) (heading); subsections 501A(7) and 501B(4); subsection 501BA(5) (heading); and subsections 501BA(5), 501C(11), 501CA(7) and 501F(5)

151.           These items are consequential to the repeal of Part 7 from the Migration Act by item 94. 



Part 2 - Multiple amendments referring to Part 5-reviewable decisions

Migration Act 1958

Item 113           Amendments of listed provisions

152.           This item omits a number of references to Part 5-reviewable decisions (however described in the Migration Act), and substitutes them with equivalent references to the new defined term reviewable migration decisions .  This item is consequential to items 1, 28 and 32, and 2, 29 and 32, which respectively repeal the definition of Part 5-reviewable decision and insert the new definition reviewable migration decision .



Part 3 - Consequential amendments of the Administrative Appeals Tribunal Act 1975

Administrative Appeals Tribunal Act 1975

Item 114           Subsection 24Z(1) (note 1)

153.           This item omits the reference to Part 7 of the Migration Act from Note 1 to subsection 24Z(1) of the AAT Act.  This is consequential to the repeal of Part 7 from the Migration Act by item 94.  As there will no longer be a Part 7, the reference is redundant.  The note continues to refer to Part 5 of the Migration Act which will now relate to all reviewable decisions .

Item 115           Paragraph 66(2)(a)

154.           This item omits the reference to a “Part 7-reviewable decision” from paragraph 66(2)(a) of the AAT Act and substitutes an equivalent reference to the new defined term reviewable refugee decision .  This item is consequential to item 94, which repeals Part 7, and to items 2, 29 and 34 which insert the new definition reviewable refugee decision



Part 4 - Application, saving and transitional provisions

Item 116           Definitions

155.           This item sets out definitions used in Part 4 of Schedule 1 to this Bill.

156.           The term commencement day means the day that item 116 commences.  The commencement provision at table item 1 of subclause 2(1) provides that the whole of the Act commences on a single day to be fixed by Proclamation or, if the provisions do not commence within 6 months of the Act receiving the Royal Assent, they commence on the day after the end of that 6 month period.

157.           The term finally determined is specified to have the meaning under the old law for the purposes of this Part.  The term is only used in this Part in subitems 117(2) and 118(2), and both provisions refer to applications being finally determined before the commencement day. 

158.           The terms new law and old law have been included in this Part to clearly differentiate between the Migration Act as amended by Schedule 1 to the Bill and the Migration Act as in force before commencement of the Bill.  

159.           The terms reviewable decision and reviewable refugee decision are also used throughout Part 4.  The definitions of these terms as set out in this item refer both to the terminology under the current Migration Act and to the new terminology as inserted by Schedule 1 to this Bill.  This is simply to make the application provisions more concise and easier to understand.

Item 117           Application of amendments—general

160.           Subitem 117(1) provides that these amendments (other than items 107 to 112) apply in relation to a review of a reviewable decision whether the application for the review was made before, on or after the commencement day. 

161.           It is necessary for these provisions (other than items 107 to 112) to apply to applications made before the commencement day in order for the code of procedure to operate consistently and provide clarity for review applicants.  This is because the primary intention of Schedule 1 to the Bill is harmonising the current code of procedure provisions.  The new and amended provisions in Part 5 of the Migration Act that replicate the current provisions in Part 5 and Part 7 of the Migration Act should apply to applications on hand at the time the new provisions commence. 

162.           Subitem 117(2) provides that the amendments made by Schedule 1 to the Bill (other than items 107 to 112) do not apply if, immediately before the commencement day, the application had been finally determined.  This ensures that applications that have been finally determined before the commencement of Schedule 1 are not affected by the amendments contained within that Schedule. 

163.           Subitem 117(3) provides that item 117 has effect subject to items 118 to 125 of Schedule 1.  Those items are explained in greater detail below.  Broadly speaking, they clarify the circumstances in which certain items in Part 1 of Schedule 1 apply.

Item 118           Application of amendments—when applications are finally determined

164.           This item provides certainty regarding how the amendments to the definition of “finally determined” apply in relation to a decision in respect of an application.

165.           Specifically, subitem 118(1) provides that the amendments made by items 3 to 11 of Schedule 1 apply in relation to a decision in respect of an application, whether the decision or the application was made before, on or after the commencement day. 

166.           Items 3 to 11 contain amendments repealing references to Part 7 and changing references from “Part 5-reviewable” to “reviewable”, along with a few minor technical amendments. 

167.           The reference to “the decision or the application” in subitem (1) has the effect that it does not matter when the decision in respect of an application, or the application itself, was made. 

168.           The effect of subitem 118(2) is that if an application has been finally determined (as defined by the Migration Act before the commencement day) prior to the commencement of item 116, then the amendments made by items 3 to 11 of Schedule 1 will not apply to the application.

Item 119   Application of amendments — notification of visa decisions

169.           This item provides that items 12 to 16 of Schedule 1 apply in relation to notices the Minister gives on or after the commencement of item 116.

170.           Items 12 to 16 make amendments to the notification of decision requirements under section 66 and section 127 and specifically remove references to Part 7.  As such, the amendments apply to notices sent after commencement.

Item 120           Application of amendments — multiple applications for review of reviewable refugee decisions

171.           This item sets out the application of new section 350A, inserted by item 44 of Schedule 1 to this Bill.  New section 350A provides that where a non-citizen makes a review application to a review body in relation to a reviewable refugee decision, which is determined by the Tribunal, and then the non-citizen makes a further review application to the Tribunal in relation to a reviewable refugee decision, the Tribunal is not required to consider any information considered in the earlier application, and may have regard to, and take to be correct, any decision made by the review body about or because of that information. 

172.           Subitem 120(1) provides that where a review application has been made to a review body in relation to a reviewable refugee decision (earlier review), and a further review application is made to the Tribunal in relation to a reviewable refugee decision (further review), new section 350A applies in relation to both applications whether either of the applications were made before, on or after the commencement day.

173.           The reference to a reviewable refugee decision in Part 4 captures both a Part 7-reviewable decision as provided in the Migration Act immediately before Schedule 1 commences and a reviewable refugee decision in the Migration Act as amended by Schedule 1 to the Bill.  As new section 350A sets out what the Tribunal may do and what it is not required to do in relation to a further application, these rules should apply to the further application whether or not the earlier application has been determined by a review body under Part 7 prior to the commencement of Schedule 1.

174.           Subitem 120(2) provides that section 350A does not apply if a decision on the earlier review and further review application is taken to have been made under subsection 430(2) or 430D(1) before Schedule 1 commences.  This is because current section 416, which new section 350A mirrors, would have applied to the further review application and so there is no need for section 350A to apply.

Item 121           Saving—directions to comply with guidance decisions

175.           Section 353B of the Migration Act is in Division 4 of Part 5 and is repealed by item 47.  Section 353B concerns guidance decisions in relation to Part 5-reviewable decisions.  Section 367A as added by item 73 concerns guidance decisions in relation to reviewable decisions.

176.           Item 121 preserves directions made under current section 353B in relation to Part 5-reviewable decisions and provides that they continue to have effect as though they were made under new section 367A.  This is important because a guidance decision is one that the President of the Tribunal or the head of the MRD directs that the Tribunal must comply with in reaching a decision on a review of a reviewable decision.  It is important to preserve any such directions that have been made, in the interest of consistency in decision making and to avoid the directions needing to be issued again.  The guidance decisions in relation to Part 7-reviewable decisions will be preserved by item 126, at table item 8, to provide that they continue to have effect as though they were made under new section 367A.

Item 122           Application of amendments—notices about evidence

177.           This item sets out the circumstances in which sections 360A and 361, as amended by items 57 to 59, do not apply in relation to a review.

178.           Subitem 122(1) provides that if the Tribunal gave an applicant notice under current section 360A before the commencement day in relation to a review, current sections 360A and 361 continue to apply in relation to that notice, and amended sections 360A and 361 do not apply to the notice. 

179.           This is necessary because a notice sent under current section 360A - that is, sent before the commencement day - will have stated the effect of subsections 361(2) and 361(2A) as they existed before the commencement day. 

180.           Given the amendments to sections 360A and 361, it is important to preserve the accuracy of, and the information included in the notice where an applicant was notified under current section 360A of the matters listed in current section 361.

181.           Similarly, subitem 122(2) provides that if the Tribunal gave an applicant a notice under current section 425A before the commencement day in relation to a review, current sections 425A and 426 continue to apply in relation to that notice, and amended sections 360A and 361 do not apply to the notice. 

182.           This is necessary because a notice sent under current section 425A before the commencement day will have stated the effect of current subsection 426(1).  As provided in item 117, amended sections 360A and 361 will apply to a review of a reviewable decision. 

183.           It is important to preserve the accuracy of the notice where an applicant was notified under current sections 425A and 426 due to the differences in amended sections 360A and 361.

184.           Paragraph 122(2)(c) further provides that the notice given before the commencement day is taken to include a statement of the effect of new section 362B if the notice included a statement of the effect of current section 426A.  Item 126, at table item 17, provides that a thing done by the Tribunal under section 426A before the commencement day will have effect on and after the commencement day as if it had been done by the Tribunal under section 362B.  Section 362B mirrors section 426A regarding what the Tribunal may do if an applicant fails to appear before the Tribunal and also what an applicant can do if the application is dismissed.  The powers of the Tribunal and the options available to the applicant are the same in sections 426A and 362B.  As section 362B will, in accordance with item 117, apply to a review of a reviewable decision, the accuracy of the notice is maintained by providing that if a statement of the effect of section 426A is included in a notice given before commencement day it will be taken to include a statement of the effect of section 362B of the Migration Act as amended by Schedule 1.

Item 123           Transitional—proficiency in English

185.           This item provides that a person is taken to be proficient in English for the purposes of section 366C as amended by item 71 of Schedule 1 if, before the commencement day, the Tribunal considered that the person was sufficiently proficient in English for the purposes of current section 366C.

186.           As section 366C is being amended, it is appropriate to ensure that where the Tribunal considered a person to be sufficiently proficient in English before the commencement day, the person is taken to be proficient in English under amended section 366C and the Tribunal does not have to undertake further consideration as to the person’s English proficiency.

Item 124           Application of amendments—offences

187.           This item sets out the application of sections 370 and 371, which are not amended by this Bill.  Those sections set out offences in relation to a failure to comply with a summons and a refusal to be sworn or to answer questions in relation to a hearing.  These provisions currently relate to reviews of Part 5-reviewable decisions.  Comparable provisions for offences relating to reviews of Part 7-reviewable decisions are at sections 432 and 433, which are in Part 7 and repealed by item 94. 

188.           Subsection 7(2) of the Acts Interpretation Act 1901 (AIA) provides, among other things, that the repeal or amendment of a part of an Act does not affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the affect part or affect any investigation, legal proceeding or remedy in respect of any such penalty, forfeiture or punishment.  It further provides that any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the affected part had not been repealed or amended.

189.           After the commencement day, sections 370 and 371 will apply to conduct that relates to all reviewable decisions.  Subitem 124(1) provides, however, that these sections do not apply to conduct that related to a review under the current Part 7 and occurred before the commencement day.  The note to subitem 124(1) clarifies that the repeal of current sections 432 and 433 does not apply to conduct that occurred before the commencement day in accordance with the operation of subsection 7(2) of the AIA.  As such, subitem 124(1) and its note clarify that the offences under sections 432 and 433 continue to apply to conduct that occurred prior to their repeal.

190.           Subitem 124(2) defines conduct for the purposes of item 124.  The definition incorporates the types of conduct under sections 432 and 433 that give rise to an offence.

Item 125           Application of amendments—disclosures

191.           This item sets out the application of new subsection 376(4), as added by item 85, in relation to disclosures made before the commencement day.

192.           Item 125 provides that new subsection 376(4) does not apply to a disclosure that was made under subsection 376(3) of the old law before the commencement day.  This is necessary because, before the commencement day, the requirement in new subsection 376(4) did not exist.  That is, before the commencement day, the Tribunal was not required to give a direction under section 378 if it made a disclosure under subsection 376(3).  The policy intention is that the new requirement under subsection 376(4) to give a direction under section 378 should not apply if, when the disclosure was made, the Tribunal was not required to give such a direction.

Item 126           Transitional—things done under repealed Part 7 taken to have been done under amended Part 5

193.           This item sets out the effect of things done by or in relation to the Tribunal, and of things done by or in relation to a person under a provision in repealed Part 7 before the commencement day.  The relevant provisions under repealed Part 7 that are captured by item 126 are provided for in column 1 of the table in subitem 126(1).   

194.           The table at subitem 126(1) provides that a thing done by or in relation to the Tribunal and those things done by or in relation to a person under those Part 7 provisions have effect on and after the commencement of Schedule 1 as though the things done by or in relation to the Tribunal or a person were done under the new Part 5 provisions provided for in column 2 of the table. 

195.           This item preserves the things done under the Part 7 provisions where there are corresponding Part 5 provisions that relate to those things.  Where it has been necessary to preserve the things done under a Part 7 provision where there is not a corresponding Part 5 provision after the commencement day, a separate application provision is provided under this Part.

196.           Subitem 126(2) clarifies that item 126 is not taken to change the time at which the thing was actually done. 

197.           Of significance here is that a Part 7-reviewable decision in respect of an application that is not finally determined will become a reviewable refugee decision and so can be reviewed under Part 5.  Applications for review made under Part 7 before commencement will be treated as having been made under Part 5.

 



Schedule 2 - Other amendments

Part 1 - Responses to a written invitation

Migration Act 1958

Items 1, 3 and 4
Subparagraphs 359AA(1)(b)(ii),(iii) and (iv); Subsection 359A(3); and Paragraph 359B(1)(b)

198.           The amendments made by these items are consequential to the amendments made by item 2.

199.           Together these items omit the wording “or respond to” wherever occurring in the listed provisions.  The existing wording provides that an applicant can comment on, or respond to, information provided to the applicant by the Tribunal that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

Item 2             Paragraph 359A(1)(c)

200.           This item omits the words “or respond to” from paragraph 359A(1)(c).  The purpose of this amendment is to ensure that an applicant must provide a substantive comment in response to an invitation given by the Tribunal.  This addresses the decisions of the Federal Court in Minister for Immigration and Citizenship v Saba Bros Tiling Pty Ltd [2011] FCA 233, where it was found that a response does not require substantive remarks or observations, but requires merely an answer or reply of any sort to the information in the invitation.

201.           The amendment will ensure the Tribunal may proceed, pursuant to subsection 359C(2), to make a decision on the review without inviting the applicant to a hearing if the applicant chooses to reply in a way that does not substantively engage or grapple with the issues contained in the information put to them in the invitation.  That is, the applicant will need to comment on the information, otherwise the Tribunal may proceed to make a decision on the review under subsection 359C(2).  

202.           Omitting the words “or respond to” will ensure that applicants cannot preserve their entitlement to appear before the Tribunal under section 360 where they have merely acknowledged receipt of the information, or provided any answer or reply that does not indicate the applicant’s position in relation to the information. 

203.           The amendments are intended to provide greater clarity to applicants around the need to provide substantive remarks or observations that engage or grapple with the information in order to meet the requirements of the invitation to appear before the Tribunal.

Items 5-8                     Subsections 359B(1), 359B(2) and 359B(3)

204.           These amendments are consequential to the omission of the words “or respond to” from paragraph 359A(1)(c), made by item 2 of Schedule 2 to the Bill.  Paragraph 359A(1)(c) is the source of the Tribunal’s obligation to invite the applicant to comment or respond to clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.  As the applicant will no longer be invited under section 359A to “comment on or respond to the information” this wording will now be redundant. 

Item 9                         Section 359C (heading)

205.           This item repeals the current heading to section 359C and substitutes a new heading.  The new heading omits the wording “or response”, consequential to the amendments made by item 2, as outlined above. 

Item 10             Paragraph 359C(2)(a)

206.           This item omits “or respond to” from paragraph 359C(2)(a), consequential to the amendments made by item 2, as outlined above

Item 11             Paragraph 359C(2)(b)

207.           This item omits “or the response” from the paragraph, consequential to the amendments made by item 2, as outlined above.  As the invitation to the applicant will no longer extend an opportunity for “response” this wording will now be redundant.

Item 12             Application

208.           This item provides that the amendments made by this Part apply in relation to a written invitation given by the Tribunal under section 359A of the Migration Act on or after the day this item commences. 



Part 2 - Officers of Tribunal

Migration Act 1958

209.           The amendments in this Part will provide administrative efficiency and will avoid the need for a person to be appointed under section 24PA of the AAT Act to be an “officer of the Tribunal” and instead appropriately provide for the Registrar or a member of staff of the Tribunal to do things such as receive documents.

Item 13             Subsection 5(1)

210.           This item inserts a definition of staff member , of the Tribunal, into subsection 5(1) of the Migration Act.  The definition is expressed to relate specifically to the Tribunal, and means a member of the staff of the Tribunal. 

Item 14             Section 337 (definition of officer of the Tribunal)

211.           This item repeals the definition of officer of the Tribunal from the Migration Act as references to an officer of the Tribunal, by items 15 - 21, are being replaced by references to the Registrar or a staff member of the Tribunal.  This will avoid the need for a person to be appointed under section 24PA of the AAT Act to be an “officer of the Tribunal” in order to do such things as receive documents. 

Items 15-21
Subsection 379AA(2), paragraph 379A(1A)(b), subsections 379A(2), (3) and (4), subparagraph 379A(4)(c)(iii), subsection 379A(5), paragraph 379A(5)(e) and subsections 379B(2), (3) and (4)

212.           These items together omit references to “or an officer” or “or officer” and substitute references to “the Registrar or a staff member” or “the Registrar or the staff member of the Tribunal”.  The definition of staff member is inserted by item 13 of Schedule 2 to the Bill.  The purpose of this substitution is to ensure that Tribunal staff members can receive applications and other documents without requiring specific appointment or authorisation to do so under the AAT Act. 

Item 22             Paragraph 379F(a)

213.           This item repeals and substitutes paragraph 379F(a) to change who a person must give a document or a thing to if permitted or required to do so in relation to the review of a decision under Part 5.  Current paragraph 379F(a) allows a person to give a document or a thing to an officer of the Tribunal.  The new paragraph will require a person to give a document or a thing to the Registrar or a staff member of the Tribunal, or a person authorised in writing by the Registrar. 

Item 23             Subsection 473JE(2)

214.           This item omits “officers of the Tribunal (within the meaning of the Administrative Appeals Tribunal Act 1975 )” and substitutes “staff members of the Tribunal”.  The purpose of this substitution is to ensure that Tribunal staff members can undertake the required function without specific appointment as an officer of the Tribunal under the AAT Act.

Item 24             Things done before commencement

215.           This item ensures that a thing done by, or in relation to an officer of the Tribunal under section 379AA, 379A or 379B before the commencement of item 24, has the effect, on or after commencement of item 24, as if it had been done, by or in relation to, the Registrar or a member of the staff of the Tribunal. 



Part 3 - Fast track reviewable decisions

Migration Act 1958

216.           The amendments in this Part provide that the Minister may refer fast track reviewable decisions in relation to members of the same family unit to the IAA for review together.  They also confirm that the IAA may review two or more fast track reviewable decisions together, whether or not they were referred together.  Further, these amendments ensure that where fast track reviewable decisions have been referred and reviewed together, documents given by the IAA to any of the applicants are taken to be given to each of them.  This would make the IAA provisions consistent with the giving of documents provisions that apply to family groups in the MRD.

Item 25             Subsection 379AA(1) (note 1)

217.           This item makes a clarifying amendment to note 1 after subsection 379AA(1).  The amendment makes the wording of the note consistent with the wording used in section 379EA, to which the note refers.   

218.           Subsection 379AA(1) and the relevant note do not apply to a fast track reviewable decision.  However, it has been included in this Part as the note deals with the same notification issue and is consistent with the wording of the note (for fast track reviewable decisions) inserted by item 29. 

Item 26             Section 473CA

219.           This item is consequential to item 27, which inserts a new subsection 473CA(2).  Due to this insertion, the content of current section 473CA is renumbered as subsection (1).

Item 27             At the end of section 473CA

220.           This item adds new subsection 473CA(2) at the end of section 473CA.  New subsection 473CA(2) provides that the Minister may refer fast track reviewable decisions together to the IAA where the decisions are in relation to fast track applicants who are members of the same family unit.  The note at the end of new subsection 473CA(2) refers readers to new section 473DG, which provides that the IAA may review fast track reviewable decisions together, whether or not those decisions were referred together. 

221.           Further, when the Minister refers fast track reviewable decisions under new subsection 473CA(2), and the IAA reviews them together, new section 473HEA inserted by item 33 provides that documents given to any of the applicants in connection with the review are taken to be given to each of them.

Item 28             At the end of Division 3 of Part 7AA

222.           This item adds new Subdivision D at the end of Division 3 of Part 7AA of the Migration Act.  This subdivision is entitled “Immigration Assessment Authority may review decisions together”.  This item also adds section 473DG, which is the only section in new Subdivision D.  Subsection 473DG(1) makes it clear that the IAA may review two or more fast track reviewable decisions together under section 473CC.  Subsection 473DG(2) clarifies that the IAA may review such decisions together whether or not they were referred together by the Minister under new subsection 473CA(2), inserted by item 27 of Schedule 2 to the Bill.  Subsection (3) clarifies that the IAA is not required to review decisions together, even if they were referred together.

Item 29             Subsection 473HA(1) (before the note)

223.           This item inserts new Note 1 at the foot of subsection 473HA(1), before the existing note.  This new note provides that if the Minister has referred fast track reviewable decisions in relation to two or more fast track applicants to the IAA together, and the IAA reviews the decisions together, a document given to any of those applicants will be taken to be given to each of them.  This is because of the operation of new section 473HEA, inserted by item 33 of Schedule 2 to the Bill.  This note directs readers to new section 473HEA.

Item 30             Subsection 473HA(1) (note)

224.           This item is a technical amendment which renumbers the current note at the foot of subsection 473HA(1), consequential to the insertion of the new note by item 29, above. 

Items 31-32                 After subsection 473HA(2); and after subsection 473HB(2)

225.           These items are consequential to item 33 below, which inserts new section 473HEA.  These items insert new subsections 473HA(2A) and 473HB(2A), which respectively provide that subsections 473HA(2) and 473HB(2) do not apply if new section 473HEA applies in relation to the minor.

226.           Subsections 473HA and 473HB provide for the method the IAA is to use in certain circumstances where the IAA is required or permitted to give a document to a person.  Where the person is a minor, subsections 473HA(2) and 473HB(2) each provide for the IAA to give a document to an individual who is at least 18 years of age instead.  It is not appropriate for these subsections to apply to situations to which new section 473HEA applies.  This is because new section 473HEA ensures that, where the fast track reviewable decisions in relation to members of the same family unit are referred and reviewed together, the IAA is not required to give documents to any one of them in particular, but may give documents to any of the applicants and these will be taken to be given to each of them.  The policy intention is to ensure that the IAA is not required to give a document to each applicant in a referred family group individually and separately. 

227.           It would contradict the policy intention if subsections 473HA(2) and 473HB(2) applied to situations covered by new section 473HEA, because those subsections could place limitations on to whom the IAA may give documents if one of the review applicants is a minor.  It is appropriate and consistent with the policy intention that section 473HEA override the requirements of those subsections by allowing the IAA to give documents to any member of the same family if two or more fast track reviewable decisions have been referred and reviewed together, even if one of those family members is a minor.

Item 33             After section 473HE

228.           This item inserts new section 473HEA after section 473HE.  New section 473HEA broadly provides that where two or more fast track reviewable decisions have been referred to the IAA together by the Minister under subsection 473CA(2) and reviewed together by the IAA as mentioned in section 473DG, documents given by the IAA to any of the applicants are taken to be given to each of those applicants. 

229.           This amendment provides administrative efficiencies because where fast track reviewable decisions have been referred to the IAA together for review, and the IAA reviews those decisions together, the IAA will be able to give a document to only one member of the family group rather than to each family member.  This is consistent with current sections 379EA in Part 5 and 441EA in Part 7, which provide that if two or more persons apply to the Tribunal for a review of a decision together, documents given to any of those persons in connection with the review are taken to be given to each of them.

230.           Note 1 to new section 473HEA clarifies that sections 473HB and 473HD operate normally in respect of documents given under section 473HEA - that is, if the IAA gives a document to a person by a method specified under section 473HB, the time at which the person receives the document is the time specified under section 473HD.  Note 2 to new section 473HEA simply clarifies that section 473HG deals with giving documents to an authorised recipient.

Item 34             Application of amendments

231.           This item provides that the amendments made by items 26, 27 and 33 of Schedule 2 apply in relation to the review of a fast track reviewable decision made before, on or after commencement of item 34.

232.           This item also provides that the amendment made by item 28 of Schedule 2 applies in relation to the IAA reviewing a fast track reviewable decision on or after the day this item commences, whether the decision was made before, on or after that day, and whether or not the IAA started to review the decision before that day.

233.           With regard to item 33, while it applies in relation to a fast track reviewable decision made before the commencement of item 34, the giving of documents under new section 473HEA can only occur where the Minister has referred two or more fast track reviewable decisions to the IAA.  The power of the Minister to refer two or more applications together is provided for in item 27 of Schedule 2 and this will only apply to fast track reviewable decisions made on or after commencement.  As such, the giving of documents under section 473HEA can only apply where the fast track reviewable decision was made on or after commencement.



Attachment

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Migration Legislation Amendment (Code of Procedure Harmonisation) Bill 2016

This Bill is compatible with the human rights and freedoms recognised                                     or declared in the international instruments listed in section 3 of the                               Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

The Migration Legislation Amendment (Code of Procedure Harmonisation) Bill 2016 (the Bill) amends the Migration Act 1958 (the Migration Act) to:

  • harmonise and streamline Part 5 and Part 7 of the Migration Act relating to merits review of certain decisions under the Act;
  • make amendments to certain provisions in Part 5 of the Migration Act to clarify the operation of those provisions;
  • clarify the requirements relating to notification of oral review decisions; and
  • make technical amendments to Part 7AA of the Migration Act so that certain aspects of the procedure for review of decisions by the Immigration Assessment Authority (IAA) align with the procedure for review under Part 5 as intended. 

  Background

On 1 July 2015, following the commencement of the Tribunals Amalgamation Act 2015 , the Migration Review Tribunal (MRT) and the Refugee Review Tribunal (RRT) were abolished and their functions in reviewing certain decisions made under the Migration Act (such as a decision to refuse to grant a visa or a decision to cancel a visa) were taken over by the newly established Migration and Refugee Division (MRD) of the Administrative Appeals Tribunal (AAT).

Decisions made under the Migration Act that were reviewable by the AAT before 1 July 2015, such as decisions to refuse or cancel a visa (including a protection visa) on character grounds under section 501 of the Act, remain reviewable by the AAT in its General Division and are not affected by the tribunals’ amalgamation. Decisions reviewable before 1 July 2015 by the IAA are also not affected by the tribunals’ amalgamation and remain reviewable by the IAA, notwithstanding the fact that the IAA, which sat within the former RRT, has sat within the MRD from 1 July 2015.

Given the amalgamation of the MRT and the RRT’s previous review functions into a single division of the AAT (i.e. the MRD), it is sensible and appropriate for Part 5 and Part 7 of the Migration Act, which contain codes of procedure that govern merits review of certain decisions under the Act by the former MRT and the RRT, to be harmonised and streamlined into a consolidated part. 

This Bill seeks to achieve the harmonisation objective by subsuming into Part 5 all provisions in Part 7 that are otherwise identical to the related provisions in Part 5, whilst preserving the provisions that are specific to and necessary for the review of protection visa decisions, such as the provision prohibiting the publication or disclosure of the identity of the protection visa applicant and their family members.

In addition, the Bill takes the opportunity of harmonising the codes of procedure in Part 5 and Part 7 to make some minor amendments to clarify certain provisions in Part 5.  The purpose of these amendments is to ensure that the provisions are interpreted and operate consistently with policy intention. 

Currently, the MRD can make its decision on review either orally or in writing, and an oral decision may be accompanied by either an oral statement of reasons or a written statement of reasons.  However, unlike for a written decision, the Migration Act does not require the MRD to notify the Secretary when an oral decision has been made (and what that decision is), nor does the Act require the MRD to provide the review applicant or the Secretary with a copy of the written statement of reasons made in relation to an oral decision. The Bill amends the Migration Act to address this anomaly and clarify the requirements relating to notification of an oral decision.

Finally, the Bill makes amendments to Part 7AA of the Migration Act so that certain aspects of the procedure for review of decisions under that Part align with Part 5 as intended. Part 7AA was inserted by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 and, in addition to establishing the IAA, provides for a code of procedure governing the review of fast track reviewable decisions (i.e. protection visa refusal decisions relating to certain fast track applicants) by the IAA. 

Where members of the same family unit make combined applications for protection visas that have been refused, and the decisions are fast track reviewable decisions, it is intended that the decisions may be referred together by the Minister to the IAA for review, and the IAA may review those decisions in relation to the entire family group together and if a document is given to one family member it will be taken to be given to each of them.  

Due to an oversight during the drafting of Part 7AA, the IAA is currently required to review each member of the family group individually and separately and has to send documents to each member of the family unit, which creates an unnecessary administrative burden. Amending Part 7AA of the Migration Act to enable the IAA to deal with family groups together facilitates efficiency of review and provides procedural consistency with how review of decisions relating to family groups are currently managed under Part 5 (and Part 7) of the Migration Act.

 

Human rights implications

This Bill has been assessed against the seven core human rights treaties and is considered to engage the following human rights:

·          the right of non-refoulement under Article 3(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), and Articles 6(1) and 7 of the International Covenant on Civil and Political Rights (ICCPR);

·          the right to an effective remedy in Article 2(3) of the ICCPR;

·          the right to freedom from lawful expulsion from the territory of a State Party in Article 13 of the ICCPR;

·          the right to a fair and public hearing in Article 14(1) of the ICCPR;

·          the right to freedom from arbitrary and unlawful interferences with privacy in Article 17 of the ICCPR.

Non-refoulement obligations

Article 3(1) of the CAT states:

No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

Non-refoulement obligations also arise, by implication, in relation to Articles 6(1) and 7 of the ICCPR.

Article 6(1) of the ICCPR states:

Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

Article 7 of the ICCPR states:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation .

These rights are arguably engaged as the amendments go to the review of decisions made under the Migration Act, including review of decisions in relation to protection visa applicants or former protection visa holders, and may impact on whether such applicants or former visa holders, depending on the outcome of the review, may become liable for removal from Australia.

The amendments proposed by this Bill preserve the existing merits review framework without removing or otherwise diminishing a visa applicant or former visa holder’s access to merits review of a refusal or cancellation decision in relation to them.  This includes where the applicant or former visa holder is a protection visa applicant or former protection visa holder. 

On receipt of a valid review application from a protection visa applicant or former protection visa holder, the MRD is required, as was the former RRT, to conduct the review of the refusal or the cancellation decision in accordance with the procedures provided for in Part 5 as amended. The MRD is also required to ensure that any protection claims put forward by the protection visa applicant or former protection visa holder are appropriately assessed in determining whether Australia’s protection obligations are engaged. 

The additional amendments proposed by this Bill to certain provisions in Part 5 are minor and merely clarify the operation of those provisions without adversely affecting the right of access to merits review or, in cases involving review of protection visa refusal or cancellation decisions, how the review applicant’s protection claims are assessed.  Similarly, the amendments relating to notification of oral review decisions clarify the notification requirements without affecting access to or procedures for review.

The amendments to Part 7AA relating to review and sending of documents in relation to fast track reviewable decisions for family groups that have been referred together promote administrative efficiency, but do not displace or remove the IAA’s obligation to consider the protection needs of each member of the referred family group.

For these reasons, to the extent that this Bill engages the non-refoulement obligations in the CAT and the ICCPR, this Bill is compatible with human rights.

Right to an effective remedy

Article 2(3) of the ICCPR relevantly provides that a State Party is to ensure that a person whose rights or freedoms are violated shall have an effective and enforceable remedy determined by competent judicial, administrative or legislative authorities.

It is the Government’s view that, as there is no general right or entitlement to hold a visa to enter or remain in Australia, a decision made by a delegate of the Minister under the Migration Act to refuse or cancel a visa would not constitute a violation of a person’s rights or freedoms.  

Even if it could be argued that such a decision constitutes a violation of rights or freedoms, the availability of merits (and judicial) review of decisions to refuse or cancel a visa means that there is an effective and enforceable remedy determined by a competent judicial authority, in this case the AAT (whether in the MRD or the General Division) or the IAA, as the case may be. 

Therefore, to the extent that this Bill can be said to engage Article 2(3) of the ICCPR, it is compatible with human rights.  

Freedom from unlawful expulsion

Article 13 of the ICCPR provides that an alien lawfully in the territory of a State Party may be expelled only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented before, the competent authority.

A decision made by a delegate of the Minister to refuse or cancel a visa, which could lead to the removal of the affected person from Australia as an unlawful non-citizen, must be made according to and within the statutory parameters provided for by the Migration Act, including compliance with procedural fairness requirements that are designed to give the person an opportunity to put forward their case and submit reasons why a decision should be made in their favour.  This aspect (i.e. decision by a delegate) remains unchanged and is not within the scope of this Bill.  However, this Bill does engage Article 13 in so far as it proposes to amend Part 5 and Part 7, and Part 7AA, of the Migration Act relating to review of decisions made by a delegate. 

This Bill will not remove or diminish the right to merits review which currently exists in the Migration Act.  As the name of the Bill suggests, its main purpose is to harmonise and streamline Part 5 and Part 7 of the Migration Act so that there is a centrally located, consolidated code of procedure for merits review of decisions made under the Migration Act, particularly in light of the amalgamation of the review functions previously performed by the (former) MRT and RRT into a single division of the AAT. 

In so far as the amendments to Part 7AA are concerned, although they are unrelated to the harmonisation objective, they ensure that the process for reviewing and giving documents for fast track reviewable decisions relating to family groups by the IAA is procedurally consistent with the way that family groups are dealt with under Part 5 as amended.  The amendments to Part 7AA do not otherwise affect the existing framework for merits review of fast track reviewable decisions by the IAA. Additionally, the right to judicial review is also not affected by the amendments.

Therefore, to the extent that this Bill engages Article 13 of the ICCPR, it is compatible with the human rights protected therein.

 

Right to a fair and public hearing

Article 14(1) of the ICCPR provides that all persons shall be equal before the courts and tribunals. It further provides that everyone is entitled, in the determination of their “rights and obligations in a suit at law”, to a “fair and public hearing by a competent, independent and impartial tribunal established by law”.

It is arguable that Article 14(1) is not directly relevant because it is questionable whether the review of administrative decisions could be characterised as “a suit at law”.  Nevertheless, the Government is committed to providing a comparable arrangement for the review of decisions made under the Migration Act that protects an affected person’s rights, liberties or obligations.

Therefore, to the extent that Article 14(1) may be said to apply, the Bill would promote the right to a fair hearing.  That is, by having the codes of procedure governing the conduct of merits review (excluding fast track reviewable decisions and character-related decisions, both of which are outside the scope of the Bill) consolidated into a central location within the Migration Act, the Bill provides greater certainty and clarity to affected individuals, which in turn facilitates the promotion of a fair hearing.

In addition to a fair hearing, Article 14(1) provides the general principle that the hearing should be in public. However, Article 14(1) also provides that the press and the public may be excluded from all or part of a trial for reasons including when the interest of the private lives of the parties so require. 

Section 365 of the Migration Act, which relates to the review of non-character related decisions that are not protection visa decisions, endorses the public nature of the review (subject to the discretion to take oral evidence in private in certain circumstances).  This requirement will be maintained in the Bill. The Bill also preserves, through the new section 365A, the existing requirement in section 429 of the Migration Act for hearings in relation to the review of (non-character related) protection visa decisions to be in private. 

The discretion to take oral evidence in private under the amended section 365 would be exercised if it is in the public interest; and the requirement to have private hearings under new 365A is for the purpose of protecting the identity and safety of the review applicant and any family members or friends who may have remained in the country from which the review applicant has claimed fear of persecution or harm.  As such, they are both within the scope of exceptions permitted under Article 14(1).  Therefore, to the extent that this Bill would limit the right to a public hearing in certain circumstances, the limitations are reasonable, proportionate and justified. 

Freedom from arbitrary and unlawful interferences with privacy

Pursuant to Article 17 of the ICCPR, an interference with an individual’s privacy must have a lawful basis and must not be arbitrary. That is to say, it must be in accordance with the provisions, aims and objectives of the ICCPR and be reasonable in the circumstances. Reasonable interferences with privacy are measures which are based on reasonable and objective criteria and which are proportionate to the purpose for which they are adopted.

The provisions relating to non-disclosure, collection, use and storage of personal information will remain unchanged under the Bill. The harmonised provisions under Part 5, as amended, will continue to provide rigorous mechanisms to protect the personal information of and other confidential evidence given by the review applicant, and will in some instances even strengthen the current provisions. For example, section 378 of the Migration Act, which currently restricts the publication of evidence, information or contents of documents given to the AAT, will be amended to restrict the publication as well as other forms of disclosure of such material. 

Therefore, this Bill is compatible with, and in some instances promotes, the human rights protected by Article 17.

Conclusion

This Bill is compatible with human rights.  To the extent that any amendments in this Bill may be seen to limit any human rights (for example the exceptions to right of public hearing in certain circumstances), those limitations are reasonable, necessary and proportionate.

The Hon. Peter Dutton, Minister for Immigration and Border Protection